CRI/APN/323/2005

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

HOLOMO
KANE APPLICANT

VS

THE
DIRECTOR OF PUBLIC PROSECUTIONS – RESPONDNET

RULING

Delivered
by the Honourable Mrs. Acting Justice Mahase On the 21st day of July
2005

This is
an application in which the petitioner, one Holomo Kane applies for
release on bail.

The
petitioner is awaiting trial in the Maseru Central Prison. He has
been remanded into custody on a charge of armed robbery. He
was
remanded into custody on the 13th June 2005. That is the day when he
was also joined as A2 in the

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said CR1
198/2005 Maseru Magistrate's Court. He has been in custody ever since
that time.

Factors
leading to the arrest and incarceration of the petitioner in the
Maseru Central Prison are an armed robbery which allegedly
occurred
at the C-River Factory at or near Maseru.

The
alleged armed robbery thereat occurred in or about the 1st June 2005.
The alleged robbers, using a gun pointed same at one Serame
Serame
and they managed to take away the sum of M9,690.00 which was
allegedly in the custody or possession of the said Serame Serame.

The
application is being strongly opposed by the Respondent (D.P.P.).

Matters
of common cause are that:

1. Petitioner
   is a Police Officer

   
   

2. That
   he was found and arrested by some of his colleagues while he was at
   his home/residence. And

   
   

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3. That
   the petitioner surrendered himself to the police on the 13th June
   2005.

   
   

At the
hearing of this application, Mr L. D. Molapo for the petitioner
applied that the supporting affidavit filed by Mr Habasisa
of the
D.P.P's office be thrown out of the window and be disregarded by this
court.

The
reason for that application being that the said supporting affidavit
was filed irregularly after the petitioner had already
filed a
replying affidavit. It was his contention that filing of the said
affidavit after petitioner had replied was irregular
and offended
against the Rules of this court. Respondent did not object to that
application, saying that their opposing affidavit
would suffice.

This
supporting affidavit was accordingly thrown out and this court will
not consider its contents herein.

It is the
petitioner's allegation that he has nothing to do with the alleged
robbery. He knows nothing about same and denies ever
having committed
this crime.

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He also
alleges that he was arrested and detained by some of his colleagues
on a suspicion of having committed the crime of armed
robbery. It is
his further allegation that this group of some of his colleagues are
those that he is not in good terms with. He
was arrested at the
beginning of June 2005.

His
further story is that he was later taken to court for a remand but
the magistrate declined to remand him on the contention that
there
was no evidence against the petitioner.

I must
pause to observe that, the petitioner has not disclosed to court the
date on which the magistrate so refused to remand him
on the alleged
grounds. There is no such minute of the magistrate on the copy of the
charge sheet annexed herein. The only minutes
on these court papers
are the minutes for the 8/06/05 when Al (Petitioner's co-accused) was
remanded and that of the 13/06/05 when
A2 (petitioner herein) was
joined and remanded to the 21/06/05 for set down.

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The
petitioner further says that the magistrate observed that clearly the
arrest and prosecution were malicious. He was then released.
As I
have said above, he is not supported herein by the minutes on the
court record, i.e the copy of the charge sheet now before
this court.

The
learned magistrate would have certainly placed it on record in
writing if she had indeed remanded the petitioner on his own

recognizance. She would also definitely not have placed her signature
on the remand form authorizing officer commanding the Maseru
Central
Prison to detain him while awaiting trial on this charge.

Also I
take Judicial notice of the fact that the offence with which the
petitioner stands charged is not bailable before the Magistrate's

court. There was therefore no way in which the learned magistrate
would remand him on his own recognizance. That would have been
a
misdirection on her

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part.
But, as has been indicated above, the petitioner is not supported by
the court record in this regard.

The
petitioner's story is further that having been released he was again
forcefully re-arrested by his colleagues and he was taken
to court.
On that undisclosed day he found that the prosecutor was not present.
He says he was then in the hands of the colleagues
with whom he was
in good terms. These colleagues of him allowed him to go away to seek
legal representation. This they did without
him (petitioner) having
been taken before court, to a magistrate.

It is his
further story that the said colleagues with whom he was in good terms
removed the handcuffs which he was tied with on
his feet when he went
to court.

He
therefore alleges that he has not absconded and that is why he
surrendered himself to the police on the 13th June 2005 when he
was
then taken to court and subsequently remanded into custody.

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I note
that the petitioner has not mentioned the names of all his colleagues
who arrested him at different times and dates in June
2005.

Neither
has he been supported herein by any of the police officers who
arrested him, took him to court and also later had him released

without an order of court to that effect.

The
petitioner has also in his papers, highlighted the court on the
identification of him as one of the robbers of the complainant.
He
challenges its validity and says that he was not fairly treated and
as such that identification parade was not fair.

He
alleges t hat because he was arrested and kept in the police cell
while wearing a police uniform, his said uniform was untidy,
shabby
and he too was unwashed. That as such he looked very different from
his fellow colleagues who were paraded together with
him, as a result
it was no wonder that

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witnesses
pointed out at him as the one who had robbed the complainant He also
says, in addition those witnesses who pointed out
at him already knew
him because he used to go to their firm to investigate cases and
later arrest people.

The
petitioner has undertaken not to abscond; more particularly because
he has a permanent and only job as a police officer. He
alleges
further that his continued detention places at risk his said job. He
also has a 20 years old wife and a four month old
baby all whom he
has to take care of.

He has in
paragraph 12 suggested the conditions of bail.

The crown
is strongly opposing the application herein, as has earlier been
indicated.

The
grounds upon which it is opposing same are briefly as follows:

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1. That
   the petitioner has not, and contrary to the provisions of the
   Criminal Procedure and Evidence (Amendment) Act No 10/2002
   set out
   the existence of exceptional circumstances justifying his release on
   bail.

   
   

2. There
   exists against the petitioner a strong prima -facie case coupled
   with the gravity or seriousness of the charged offence,
   which might
   induce the petitioner to abscond and not stand his trial.

   
   

It is the
crown's argument that not only a strong prima-facie case exists
against the petitioner herein, but also that, in addition,
he has
been positively identified by three witness at an identification
parade and so he was placed at the scene of the crime by
the said
witnesses.

The crown
therefore feels that, taking all the surrounding circumstances in
this case, the petitioner is likely to abscond.

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The
investigating officer No. 3529/D/TPR Mokhathi has, at paragraph 6 of
his opposing affidavit specifically informed this court
that the
petitioner did actually run away from lawful custody on the day that
he was taken to court for a remand.

This is
an important piece of evidence which this court cannot over look. The
petitioner, in an attempt to reply to same, has indeed
confirmed that
he left the court premises to go to his lawyer, but he had not been
release by the magistrate. His story is that
his colleagues with whom
he was in good terms had released him to go away.

This he
makes clear in his replying affidavit at paragraph 6.

It is
common cause that it was on the 10th June 2005 when the petitioner so
absconded. It was only after some three days that he
resurfaced and
surrendered himself to the police. He was bound to do so because he
had learned that the police

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had been
to his residence to look for him. He may have realized that there was
no way of escaping from them.

I must
mention that being a police officer, the petitioner understood very
well why he was taken to court but decided to abscond
on the pretext
that his colleagues had released him. It was not his colleagues who
had to release him but it was the court before
which he would appear.

The story
of the petitioner in this regard is found not to be reasonably
possibly true and is rejected. I accept the version of
the crown as
being reasonably possibly true. Indeed the petitioner was remanded
formally on this charge on the 13th June 2005 and
not on the 10th
June 2005. That goes to show that it was the petitioner herein who
frustrated efforts to have him remanded on the
10th June 2005,
together with his co accused.

I will
not go into the issues pertaining to the identification parade and
the existence or not of a strong prima-facie case.

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These
issues will be dealt with during trial of this case. Presently they
are not very relevant issues for purposes of this application.

Indeed in
applications of this nature, the court, in exercising its discretion
must seek to strike a balance between protecting
the liberty of the
individual and safe guarding the proper administration of Justice.

The
fundamental consideration is the interests of justice. The question
here is whether if released on bail, the petitioner will
abscond
thereby defeating the ends of justice. In the present application,
there is evidence that on the 10th June 2005 when petitioner
was
taken to court for a remand, he absconded while the police who had
escorted him to court were in the office of the District
Public
Prosecutor.

The
petitioner's story that the District Public Prosecutor was not
present and that he was allowed by his colleagues to go and obtain

the assistance of a lawyer has already been

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rejected
by this court as not being true. In any case even assuming for
argument-sake that Mr Ntsamai was not in his office nor
was not at
work on that particular day, he is not the only Prosecutor who could
handle this case. I take judicial notice of the
fact that there are
many other prosecutors thereat, but the petitioner left the court
premises even before he was informed as to
who would attend to his
case in the absence of Mr Ntsamai. He should have waited until when
he was formally released by the court.

Also one
wonders why it took plus or minus two days for the petitioner to go
back to the police by way of surrendering himself.
If indeed he had
been so released by his colleagues, contrary to the law, they should
have agreed on the next time which be would
go for a remand. As I
have said, the petitioner re surfaced only after the police had gone
out to look for him. How could they
have gone around looking for the
petitioner if indeed they had agreed to have him released?

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The
petitioner has not denied that the said colleagues of his went around
looking for him after he had absconded from the premises
of the
Maseru Magistrates court where he had been taken for a formal remand.

In any
case his story holds no water and he has failed to convince this
court that indeed it was his colleagues who had released
him to go
away before he was formally remanded. In any case the said colleagues
of the petitioner have no powers nor a right to
release a suspect who
is being taken to court for a formal remand. They would have acted
outside their powers if they had indeed
done so. None of his said
colleagues has supported him on this issue.

In the
circumstances of this case, I have come to the conclusion that the
crown has made out its case that if released on bail,
the petitioner
is not likely to stand trial but will abscond. The events of the 10th
June 2005, have clearly indicated that the
petitioner did abscond
from the court

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premises
and nothing has been placed before this court by the petitioner to
rebut this allegation

This
court has accordingly come to the conclusion that there are no
exceptional circumstances placed before it by the petitioner
for it
to consider in this application.

The
petitioner has failed to discharge the burden of proof ever so placed
on him in bail applications to show that exceptional circumstances

exist in his favour and that interests of justice will not be
prejudiced.

The
application is accordingly refused.

M. MAHASE

ACTING
JUDGE

For
Applicant: Mr L.V. Molapo

For
Respondent: Mr Seitlheko.

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